Full text of Last FM Music Manager license agreement as of now
Digital Music Promotion and Broadcast
Agreement between you and Last.fm (the “Agreement”).
This Agreement was last updated on 1st
June 2011.
THE MAIN TERMS OF THE AGREEMENT IN A
NUTSHELL:
1. You
confirm that you have permission to upload all of your content and make it
available worldwide (without restriction) or have obtained permission from the
relevant rightsholder(s).
2. Last.fm
may (but shall have no obligation to) use your tracks for its Internet radio
streaming service and for 30 second previews, and if you choose, for “full
length preview” and / or “free downloads”, worldwide.
3.
During the registration process, you were given the option to share in
royalties from the use of sound recordings of your tracks on the Last.fm
services.
4.
Last.fm will pay royalties for the use of any musical compositions for Internet
radio streaming directly to collection societies who administer music
publishing rights (for example, PRS for Music in the UK) as described in this
Agreement.
5.
Last.fm does not claim any ownership rights in your content. You will continue
to own your content and can use it in any way that you choose.
6. It is up to you whether to make your
tracks available on the Last.fm services as a “full length preview” and/or
“free download” (which will automatically make the tracks eligible for
inclusion in the podcast and download service). This service is offered to help
users readily access our tracks and help promote your music, and by selecting
the “full length preview” and/or “free download” option, you expressly agree
that you waive, and have obtained a waiver from the relevant rightsholder(s)
to, any royalties for the use of your tracks in this manner (including if such
royalties arise from the use of musical compositions, sound recordings,
performances or otherwise).
7. You
or Last.fm can terminate this Agreement at any time by: (i) you removing your
content using the facility provided by the Last.fm services; or (ii) one party
providing the other party with 7 days’ prior written notice of termination.
THE PARTIES AGREE AS FOLLOWS:
This Agreement sets out the terms and
conditions agreed between you (“You”,
“Your”) and Last.fm Limited (“Last.fm”) on the basis that:
- Last.fm
intends to promote and make available music over the Internet on its website,
through players, apps and affiliated sites and outlets, such as third party
software client applications, widgets, blogs and social networks and third
party hardware applications (for example Internet radio players, media adapters
and other hardware on which music can be played) and where relevant, by linking
to online music stores and other third party providers;
- You
own or have the right to exploit and to grant a worldwide licence to Last.fm to
use the sound recordings (and, where You choose to make Your Content available
for “full length previews” and/or “free downloads” on the Last.fm and
affiliated services (which will automatically make the tracks eligible for
inclusion in the podcast service and download service), the underlying musical
compositions and lyrics) and any performance of any artist and/or performer
embodied in Your track, together with any metadata, artwork, images, lyrics and
sleeve notes which You upload and provide to Last.fm (together, “Your Content”).
1.
GRANT OF LICENCE
1.1 Your
Content
By uploading Your Content, You grant to
Last.fm a non-exclusive licence (including the right to sub-license for all
purposes related to the Last.fm and its affiliated services (such as, for
example, embedding a Last.fm player on third party websites)) during the Term
(as defined in clause 3) throughout the world to:
(a) communicate
and make Your Content and any thirty (30) second preview clip of Your Content
available through the Last.fm services (including through affiliated sites and
outlets); and
(b) to
copy, cache and otherwise exploit Your Content as necessary for all purposes
associated with the Last.fm services (including through affiliated sites and
outlets).
Subject to clause 3.2 below and depending
on the options selected in Music
Manager, the licence is either royalty-free or in return for royalties as set
out in this Agreement.
1.2
Reserved Rights
All rights and licences not expressly
granted to Last.fm under this Agreement are reserved by You. Ownership of Your
Content shall remain with You or Your licensors.
2.
DELIVERY
2.1 You
shall deliver to Last.fm:
(a) Your
Content, including copies of the master versions of Your Content from which
Last.fm shall be entitled to make copies for the purpose set out in this
Agreement (see clause 2.4);
(b) All
necessary, related artwork for use by Last.fm in connection with the marketing
and promotion of Your Content;
(c) A
written schedule of the names and contact information of the author(s),
composer(s) and music publisher(s) and performers of the songs embodied in Your
Content, together with any additional copyright information and metadata in
Your possession or under Your control relating to such songs and Your Content;
and
(d) The
following information shall be included in metadata associated with Your
Content which is delivered to Last.fm:
(i) Artist
name
(ii) Track
name
(III) Version
name
(IV) Composer
name
(iv) Album name
(if applicable)
(v) ISRC (if available); AND
(vi) Credits that You are contractually obliged to
provide to Last.fm to display on Last.fm’s website at www.last.fm (the “LAST.FM
Website”) in connection with
the use of Your Content under this Agreement (If Applicable).
2.2 Last.fm
requires the information set out above to ensure that Your music is displayed
correctly and to enable Last.fm, where applicable, to report to collection
societies so that the relevant payments can be made.
2.3 Last.fm
may encode or transcode Your Content as required.
2.4 You
can deliver Your Content and the material set out in clause 2.1 through digital uploads or if agreed with Last.fm, some other form of digital carrier.
3.
TERM
3.1 This
Agreement shall commence on the earlier of the date that You deliver any of
Your Content to Last.fm and the date that You upload any of Your Content using
the facility on the Last.fm services, and shall continue until such time as You
or Last.fm terminate this Agreement by:
(a) You
removing Your Content using the facility provided by the Last.fm services; or
(b) one
party providing the other party with 7 days' prior written notice of
termination.
3.2 If
You choose to terminate this Agreement by giving 7 days’ written notice and You
do not remove Your Content following the end of such 7 day period, Last.fm
shall have a royalty-free licence to use Your Content in accordance with Clause
1.1 until You remove Your Content.
3.3 Following
termination of this Agreement, Last.fm may retain on a confidential basis one copy of any
correspondence, information or data provided by You to Last.fm in order to
comply with legal or regulatory requirements and/or internal document retention
policies as well as any and all: (i) e-mails and any attachments contained in
such e-mails; and (ii) any electronic files, each of which are automatically
saved.
4.
REPRESENTATIONS AND WARRANTIES
4.1 You
represent, warrant and undertake to Last.fm that:
(a) the
information that You have provided to set up Your Music Manager account is
true, accurate, current, complete and is compliant with the Last.fm Website
Terms of Use, including the Privacy Policy;
(b) You
are the owner or authorised licensor of Your Content throughout the world and
have obtained all necessary rights, clearances, consents, releases, waivers,
and authorisations in respect of Your Content;
(c) You
have full right and authority to enter into this Agreement and grant the licence
in clause 1.1;
(d) There
is no present or prospective claim or litigation in respect of Your Content;
(e) The
use by Last.fm of Your Content shall not infringe the rights of any third
party;
(f) You
have cleared all rights (including in the form of waivers of all moral rights,
neighbouring rights or similar rights held anywhere in the world from any
contributor to Your Content) and made all payments due to any performing
artist, collecting society, producer or contributor to Your Content (including
but not limited to music synchronisation clearances and fees, where
applicable), that such payments are equitable in accordance with relevant
legislation and that no further payments shall be payable by Last.fm; and
(g) Your
Content will not contain any contaminated file, viruses, worms, Trojan horses
or other similar harmful or destructive code or program.
4.2 Last.fm
warrants that it has the full right and authority to enter into this Agreement.
5.
RIGHTS IN THE CONTENT
5.1 Last.fm
enters into licence arrangements with collection societies who administer music
publishing rights. In order to be paid any royalties due to You under this
Agreement for the use of any musical compositions in Your Content, You should join
Your local collection society and register Your Content with them.
5.2 During
the Music Manager registration process, You were asked to select one of three
options dependent on who owns the rights in any sound recordings within Your
Content. The option You selected determines how royalties will be paid for the
exploitation of Your Content, as further explained below:
- BOX
1: - I want to collect radio royalties for all my songs directly.
By selecting BOX 1:
(a) You
confirm that You wish to participate in Last.fm’s royalty share scheme;
(b) You
warrant to Last.fm that as of the date when You tick BOX 1, You are not a
member of any collection society established for the collection of royalties
for the communication to the public of sound recordings (for example, PPL in
the UK or SoundExchange in the US); and
(c) You
agree that if You become a member of such a collection society, sign a deal
with a record label or assign the rights in Your Content to a third party, You
will immediately inform Last.fm by accessing your account and selecting Box 2.
You must also provide Last.fm with all relevant details of Your membership with
any collection society.
- BOX
2: – I’m ineligible to collect royalties directly. I’m a member of a
collection society for radio use.
By selecting BOX 2:
(a) You
confirm that You wish to participate in Last.fm’s royalty share scheme;
(b) You
warrant to Last.fm that as of the date when You tick BOX 2, You are a member of
a collection society solely for the collection of royalties for the
communication to the public of sound recordings on the radio (for example, PPL
in the UK or SoundExchange in the US); and
(c) You
will provide Last.fm with all relevant information reasonably required by
Last.fm for reporting radio usage of Your Content to such collection society.
- BOX
3: – I don’t want to collect royalties or have entered into a direct
royalty agreement with Last.fm.
By selecting BOX 3:
(a) You
confirm that as of the date when You tick BOX 3, You are not a member of a
collection society for the collection of royalties for the communication to the
public of sound recordings; and
(b) You
confirm that You do not wish to participate in Last.fm’s royalty scheme; or
(c) You
have entered into a direct royalty agreement with Last.fm, in which case the
terms of such royalty agreement shall govern the way in which royalties accrue
and are paid to You.
5.3 You
agree that the acceptance by Last.fm of Your Content for inclusion on the
Last.fm services and the payment of any royalty (where applicable) represents
the entire and satisfactory consideration for the grant of the licence at
clause 1.1 above.
5.4 If,
for any reason, You need to change how royalties are paid for the use of Your
Content on the Last.fm services, You can do so by logging on to Your label
account and clicking on the ‘Royalties’ tab. Any change will only become
effective from the date on which You make the change to Your label account.
5.5 If
You have a direct royalty agreement with Last.fm, regardless of which option
You selected during the registration process, the terms of such direct royalty
agreement shall apply. Royalties will accrue and be payable in accordance with
the terms of Your direct royalty agreement. If there is any conflict between
the provisions of Your direct royalty agreement and this Agreement, the terms
of Your direct royalty agreement with Last.fm shall take precedence.
6.
INDEMNITY
You hereby indemnify and will at all times
keep Last.fm its parents, subsidiaries and affiliates (including CBS
Corporation and its direct and indirect subsidiaries) fully and effectively indemnified from
and against any and costs, claims, demands, investigations,
liabilities, losses, damages, judgments, settlements, costs and expenses
whatsoever, including attorneys' fees arising out of or in connection with this
Agreement, made against or
incurred by Last.fm in consequence of any actual or alleged breach or
non-performance by You of any of Your representations, warranties,
undertakings or covenants, or Your
violation of any material term or condition, contained in this Agreement. You will cooperate as fully and reasonably as required by Last.fm
in the defence of any claim. Notwithstanding the foregoing, Last.fm retains the
exclusive right to settle, compromise and pay any and all claims, demands,
proceedings, suits, actions or causes of actions which are brought against
Last.fm.
7.
ROYALTY SHARE
7.1 Subject
to clause 7.3, Last.fm will pay You royalties from making Your Content
available on the Last.fm services. If You ticked BOX 1 or BOX 2, You are
eligible to take part in the royalty scheme.
7.2 If
You ticked BOX 2, royalties will be paid to the applicable collection society,
the details of which You must provide to Last.fm.
7.3 If
You ticked BOX 3, You have granted Last.fm a royalty-free licence pursuant to
clause 1.1 above (unless You have entered into a direct royalty agreement with
Last.fm as described in paragraph (c) under the Box 3 terms above). This means
that Last.fm will be able to use Your Content without direct payment to You or
payment to the applicable collection society unless and until You either:
(a) terminate
this Agreement by removing Your Content using the facility provided by the
Last.fm services; or
(b) become
a member of an applicable collection society, in which case You must
immediately inform Last.fm by logging on to Your label account and selecting
Box 2 and provide all relevant details of Your membership.
You should not select BOX 1 if You are a
member of a collection society for the collection of royalties (such as the PPL
in the UK or SoundExchange in the US) for radio use of sound recordings because
in those circumstances, Last.fm will pay the relevant royalties set out below
to the relevant collection society. You must provide details of the collection
society to Last.fm.
7.4 Last.fm shall pay the following
royalties in respect of the streaming of Your Content as permitted by You:
- for
the free radio service, 10% of the Share of Last.fm’s Net Revenue from the free
radio service.
- for
the subscription radio service, the greater of 20% of the Share of Last.fm’s
Net Revenue from the subscription radio service or a per minima amount of US $0.0005
for each complete playback to an end user on the Last.fm subscription radio
service of a track which forms part of Your Content.
In this section:
“Share”
means a share of the Net Revenue royalty pool which is calculated by dividing
the number of times a track which forms part of Your Content is played back to
the end user by the total number of complete performances of sound recordings
on the Last.fm services and multiplying that figure by the Net Revenue;
For the free radio service, “Net Revenue” means all advertising
revenue (including sponsorship revenue but excluding subscription revenue),
directly attributable to the actual playback of Your Content to a user through
Last.fm services (including through affiliated sites and outlets) after the deduction
of any advertising agency commissions paid to advertising agencies, sales
houses or re-sellers.
For the subscription radio service, “Net Revenue” means the subscription fee
paid by a user and received by Last.fm on all pages of the Last.fm Website
where a user has accessed ad-free playback of Your Content through through
Last.fm services (including through affiliated sites and outlets) after the
deduction of any advertising agency commissions paid to advertising agencies,
sales houses or re-sellers. All and any trial periods which Last.fm may grant
to its users from time to time shall be treated as part of the free radio
service for the purposes of this Agreement.
7.5 You
expressly acknowledge and agree that no royalty shall be payable by Last.fm to
You or any third party for preview clips, “full length previews”, “free
downloads”, any streams of Your Content that are less than 30 seconds in length
or for Your Content which is cached (and not played back to the end
user), or for any metadata,
artwork, images, lyrics, sleeve notes or other similar
material provided by You.
7.6 Where Last.fm
discovers a duplicate item of Your Content, Last.fm shall only be liable to pay
a royalty to the party who is legally authorised to grant a licence to Last.fm.
If You believe someone has uploaded your tracks to the Last.fm services without
Your consent, You may notify Last.fm by following the procedure set out in the
Last.fm Website Terms of Use and Last.fm will act in accordance with such
procedure.
7.7 Royalties shall only
start to accrue from the date on which Your Content is first used on the
Last.fm Services provided that You have accepted these Terms and Conditions.
Last.fm shall not be liable to You or any third party for any retrospective use
of Your Content on the Last.fm services or for any royalties that are or have
been incorrectly paid by Last.fm to any third party who claimed ownership of
Your Content.
7.8 The minimum royalty
amount payable pursuant to Clause 7.9 is either US$10.00, £5.00, €7.00 or ¥1000
depending on your local currency (the “Minimum Royalty”). Where the royalty payable to You in any given quarter does not amount
to the Minimum Royalty, the sums due to You shall accrue until the amount owing
is at least the Minimum Royalty.
7.9 Where Last.fm is
paying royalties directly to You, payments shall only be made following a
written request from You via the Music Manager system and shall be made to the
person identified as the nominated payee in Your label account on the date that
You request the payment to be made (the “Nominated Payee”). Payments shall be made 30 days after the end of each quarter via a
payment method chosen by Last.fm in its sole discretion and provided that the
Minimum Royalty has been met.
7.10 Last.fm shall have discharged its
obligation to pay royalties pursuant to clause 7.9 by paying the amount to the
Nominated Payee. Last.fm shall have no further liability in this regard. It is
Your responsibility to make sure that the Nominated Payee details are correct.
7.11 You can use royalties that have
accrued to You to purchase Last.fm products to promote Your Content on the
Last.fm services at any time, even where the amount accrued is less than the
Minimum Royalty.
7.12 Payments shall be converted from
US dollars to Your local currency at the spot rate on the last date of the
relevant quarter before payment is made.
7.13 You shall be able to access
information online via the Music Manager system detailing how many times Your
Content is played and any royalty payments due to You. This information will be
updated by Last.fm once every three months (in April, July, October and
January) or as soon as is reasonably practicable.
7.14 If this Agreement is terminated
by You or Last.fm for any reason, any royalties equal to or above the Minimum
Royalty owing to You shall be paid in full 30 days after the end of the calendar
month in which the Agreement is terminated to the Nominated Payee. Any
royalties owing to You that are less than the Minimum Royalty shall be credited
to You for the purchase of Last.fm products on the Last.fm services.
8. FULL LENGTH PREVIEWS, FREE DOWNLOADS AND PODCASTS
8.1 Last.fm gives You the
opportunity to make Your Content available as “full length previews” and/or
“free downloads” (to the extent available) on the Last.fm services. Where You
choose to make Your Content available as “full length previews” and/or “free
downloads”:
(a) You
acknowledge and agree that Your Content will automatically become eligible to
be included as a podcast, as a download, or as a playback service with
additional functionality and made available on through Last.fm and its
affiliated services. For more information please see the Music Manager FAQ.
(b) You
acknowledge and agree that neither You nor any third party are entitled to
receive any royalties from the exploitation of such “full length previews”
and/or “free downloads” and/or podcasts and that Last.fm (or its affiliates) shall
not be liable to pay royalties for the use of the sound recordings and/or any musical compositions (including
without limitation, from the making available, performance or mechanical
rights) in such previews, downloads or podcasts to collection societies who
administer music publishing rights (for example PRS for Music in the UK). You
further agree that you have cleared all rights (including in the form of
waivers of all moral rights, neighbouring rights or similar rights held
anywhere in the world) for the exploitation of such “full length previews”
and/or “free downloads” and/or podcasts as set out in this Agreement.
(c) in
addition to the warranties set out in clause 4, You represent, warrant and
undertake to Last.fm that:
(i) You
are fully authorised to make Your Content available for “full length previews”,
“free downloads” and podcast on a worldwide basis; and
(ii) You
own or control the copyright in the sound recording and the underlying musical
composition(s) and lyrics.
9.
ABUSE OF THE LAST.FM WEBSITE
The Music Manager service is intended as a
fair platform to help emerging artists and labels find a legitimate audience
online. By using the service, You agree that You shall not do or cause anything
to be done that causes You to receive an unfair advantage or unjust revenue or in
any way prejudices the operation of the Last.fm Website or any part of it. In
particular, You will not authorise, enable or engage in any activity which is
or is intended to be fraudulent, unlawful, false or which artificially alters
any information on or relating to the Last.fm Website, including (by way of
example) falsifying the number of site impressions, uploading content that is
already licensed to Last.fm or uploading duplicates of Your Content. Last.fm
reserves the right, but is not obligated, to delete, move or edit Your Content
and any information relating to Your Content on the Last.fm Website, in whole
or in part, in our sole discretion. Last.fm reserves the right to suspend or
terminate Your access to the Last.fm Website with immediate effect and without
notice to You, and to pursue all legal remedies if Last.fm believes, in its
sole discretion, that You are in breach of any part of this clause.
10. DEMONSTRATIONS
You agree that Last.fm may use Your
Content (including screenshots) to demonstrate the functioning of the Last.fm
services, provided that Last.fm shall not use Your Content as a direct product
endorsement.
11. OTHER TERMS
The terms of the Last.fm Website Terms of
Use, including the Privacy Policy, also form part of this Agreement. Please
read the terms and ensure You accept and are familiar with them. To the extent
that there is any conflict between the Last.fm Website Terms of Use and this
Agreement, the terms of this Agreement shall prevail.
12. RELATIONSHIP
You acknowledge and agree that this
Agreement sets out the business relationship between You and Last.fm.
The business relationship between You and
Last.fm is of licensor and licensee and nothing in this Agreement shall be
construed: (i) to give either party the power to direct or control the daily
activities of the other party; or (ii) to constitute the parties as principal
and agent, employer and employee, franchisor and franchisee, partners, joint
venturers, co-owners, or otherwise as participants in a joint undertaking.
13. NO OBLIGATION
You acknowledge that Last.fm may change
the scope of its services from time to time and without notice to You. Last.fm
shall be under no obligation to stream or otherwise use Your Content.
14. MISCELLANEOUS
All notices or other communications
required under this Agreement shall be given by email to the relevant party at
the email addresses stated below and shall be deemed to have been given on the
date that the email is read by the recipient (evidenced by a read receipt
automatically sent to the sender).
Last.fm: labels@last.fm
You: The email address supplied by You
when You registered to use the Music Manager services.
For the purpose of the Contracts (Rights
of Third Parties) Act 1999, nothing in this Agreement shall confer or purport
to confer on any third party any benefit or the right to enforce any term of
this Agreement.
If any provision of this Agreement (or
part of any provision) is found by any court or other authority of competent
jurisdiction to be invalid, illegal or unenforceable, that provision or part of
such provision shall, to the extent required, be deemed not to form part of
this Agreement, and the validity and enforceability of the other provisions of
this Agreement shall not be affected.
This Agreement is governed by and shall be
construed in accordance with English law and in the event of a dispute the
parties shall submit to the exclusive jurisdiction of the English Courts.
Last.fm may, at its sole discretion, make
changes to this Agreement at any time and will post any changes on this
page. In certain circumstances,
Last.fm may send an email to You notifying You of the change. You should,
however, check these Terms and Conditions from time to time to ensure You are
aware of any changes.
If You find any change unacceptable, You
should terminate this Agreement by removing Your Content using the facility
provided by the Last.fm services. Failure to terminate this Agreement by
removing Your Content following any change shall constitute Your acceptance of
the new terms and conditions of this Agreement.
THIS AGREEMENT SETS OUT THE TERMS
AND CONDITIONS GOVERNING THE USE OF YOUR CONTENT ON THE LAST.FM SERVICES. IF
YOU ARE UNSURE ABOUT ANY OF THESE TERMS AND CONDITIONS YOU ARE ADVISED TO
OBTAIN INDEPENDENT LEGAL ADVICE BEFORE ACCEPTING THEM.
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